Criticism Of The Discussion Paper On The Model Criminal Code
From "Australian Decline" by LJM Cooray (c 1985)

The comments in this paper are on the Model Criminal Code, Chapter 5, Sexual Offences Against The Person, Discussion Paper, prepared by the Officers Committee of the Standing Committee of Attorneys-General.

The underlying philosophical basis of the Discussion Paper is fatally flawed. There are two fundamental weaknesses which distort the entire discussion Paper. They are: (1) the attitude to the existing common law methodology and (2) the hostility to religion and morality.

The bias against the common law methodology
The submissions are critical of the philosophy and methodology of the common law and seeks to provide a new basis. There are weaknesses in the common law philosophy and methodology. Any legal system will have weaknesses. No legal principles can be applied to every conceivable situation. The suggested reforms are counter productive. The reforms will lead to many more problems than which exist under a system based on the common law methodology and philosophy. Necessary amendments to suit modern conditions based on the existing system is a far better way forward. This system, despite imperfections has worked better than any system which the world has known. The Committee proposals involve throwing the baby out with the bath water and replacement with suggestions which border on or sometimes are beyond the idiotic.

The accumulated experience of the past is discarded in many areas. A new act has been drafted. The draft is likely to create great uncertainty. Law reform (so called) consequent to the problems of existing law, provides new provisions. These provisions invariably create more problems than the law which was replaced. There is little doubt that the provisions of this Code are so vague that it will lead to endless litigation. An example is provided from the report.

8.2 Intoxication (offences involving basic intent)

Evidence of self-induced intoxication cannot be considered in determining whether a fault element of basic intent existed.
A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance is not a fault element of basic element. p.202 of Chapter 5.

This is plain unmitigated gobbledygook; it is a recipe for uncertainty.

The existing law with all its faults has an accumulated body of case law. A new beginning is to be made with sections which generate great uncertainty.

The comments of the Discussion Paper on rape are laughable, if the subject were not so important.

The modern emphasis is not upon the protection of virginity, the risk of pregnancy, or the defilement of another man's wife or daughter, but rather upon providing the appropriate level of protection for the sexual autonomy of women and men. On that basis, there is no justification for drawing the distinctions which were involved in the common law of rape. (p. 19 of Chapter 5.)

What is "providing the appropriate level of protection for the sexual autonomy of women and men". This is gobbledygook. It is subversive nonsense. It is a crime that tax payer's money is spent on preparation of such proposals.

The basis of the law must be protection against violence, protection of a woman from being forced into a very intimate and private act, protection against forced sex, protection against defilement in a most intimate area, protection of the most important of all relationships (if one exists in a particular situation of rape), protection of virginity (if the raped person is a virgin) and the protection against unwanted pregnancy.

The bias against morality
The underlying philosophy of the Discussion Paper is reflected in the following comment:

Laws should reflect social need, not moral repugnance. Unless there are pressing reasons to do so, it is futile to try and stop activities which are bound to continue and upon which the community is divided... Where the moral issue is one upon which there is room for seriously divergent opinions, the legislature should therefore interfere to the extent necessary to protect the community, or any individuals with special needs. Generally those who take part voluntarily in activities some consider morally repugnant should not be the concern of the legislature unless they are so young and defenceless that their involvement is not truly voluntary.( p. 9 of Chapter 5.)

Page 9 of chapter 5: The first sentence says "laws should reflect social needs not moral repugnance". This shows a clear bias of the committee. The committee seem to think of morality as leading to repugnance. This is clearly the committee's biased perspective. The basis of religious morality is not repugnance, it is right and justice. [Sanity]

The committee is living in cuckoo land if it believes that there can be law without morality. What the committee apparently is against is not morality (which is about standards of right and wrong) but religious morality. The committee sets up its own morality in the report. Morality is about what is right and wrong. The members of the committee are rejecting religious morality. They are putting up their own version of morality. They do this in a devious way, without recognising that they are replacing one set of morality with another. A pervading influence in the Committee's work is the repugnance which is felt towards religious morality. This makes the work of the Committee repugnant to common sense, wisdom and human progress.

The following is an extract from L J M Cooray,The Case for Morality (shortly to be published).